Citation Nr: 9815761
Decision Date: 05/21/98 Archive Date: 05/29/98
DOCKET NO. 95-04 308A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Louisville,
Kentucky
THE ISSUES
1. Entitlement to an effective date earlier than November 16,
1990, for a total rating based on unemployability due to
service-connected disabilities.
2. Entitlement to an increased rating for intervertebral disc
disease, currently rated as 60 percent disabling.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Nancy S. Kettelle, Counsel
INTRODUCTION
The veteran had active service from May 1941 to September
1945, from October 1951 to November 1952 and from July 1957
to November 1958.
The veteran’s representative has raised the issue of clear
and unmistakable error in a prior decision of the Board of
Veterans’ Appeals (Board) under the provisions of Public Law
No. 05-111. The Board has imposed a temporary stay on
adjudication of such issues until implementing regulations
can be promulgated. When final regulations have been issued,
the Board will lift the stay and begin to adjudicate these
issues, including the issue raised in this particular case.
The issue of entitlement to an effective date earlier than
November 16, 1990, for a total rating based on
unemployability due to service-connected disabilities is
inextricably intertwined with the clear and unmistakable
error claim; this claim is also subject to the stay and is
deferred until the stay is lifted.
The issue of entitlement to an increased rating for
intervertebral disc disease comes to the Board on appeal from
a September 1995 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Louisville,
Kentucky.
The Board notes that the record includes a Standard Form 95,
dated in May 1995 and addressed to VA District Counsel in
Kentucky, in which the veteran claims personal injury based
on his May 1986 prostate surgery by VA. The Board directs
this matter to the attention of the RO for action or
referral, as appropriate.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that an increased rating is warranted
for his service-connected back disability because a November
1994 magnetic resonance imaging report and a later VA
physician’s report show that his back condition is
deteriorating.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran's
claims files. Based on its review of the relevant evidence
in this matter, and for the following reasons and bases, it
is the decision of the Board that the preponderance of the
evidence is against an increased rating for the veteran’s
service-connected intervertebral disc disease.
FINDINGS OF FACT
1. All evidence necessary for an equitable disposition of the
veteran’s claim has been obtained by the RO.
2. The veteran’s intervertebral disc disease is manifested
primarily by low back pain with radiation into the right
leg; the disability is no more than pronounced.
CONCLUSION OF LAW
A rating in excess of 60 percent for intervertebral disc
disease is not warranted. 38 U.S.C.A. § 1155 (West 1991);
38 C.F.R. § 4.71a, Diagnostic Code 5293 (1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Board notes that the veteran’s claim for an increased
rating for his service-connected intervertebral disc disease
is well grounded within the meaning of 38 U.S.C.A. § 5107(a)
(West 1991) in that it is plausible. The Board is satisfied
that all relevant facts have been properly developed and that
no further assistance to the veteran is required to comply
with 38 U.S.C.A. § 5107(a).
In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (1997)
and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board
has reviewed all the evidence of record pertaining to the
veteran’s service-connected intervertebral disc disease. The
Board has found nothing in the historical record that would
lead to the conclusion that the current evidence of record is
not adequate for rating purposes. Moreover, the Board is of
the opinion that this case represents no evidentiary
considerations that would warrant an exposition of remote
clinical histories and findings pertaining to the veteran’s
service-connected back disability.
Briefly, review of the record shows that the RO initially
granted service connection for muscle atrophy of the right
leg stating it was presumably the result of sciatic neuritis
and assigned a 10 percent rating. In 1963, the RO rated the
disability as intervertebral disease syndrome and assigned a
20 percent rating. With the exception of a brief temporary
total rating based on hospitalization from August to
September 1963, the 20 percent rating continued until 1983.
In a June 1983 rating decision, the RO granted a 40 percent
rating for intervertebral disc syndrome with sciatic
neuropathy and traumatic changes, L1-L2, from the beginning
of an 8-day period of VA hospitalization in March 1983.
On hospital admission in March 1983, it was noted that the
veteran had a history of chronic low back pain and
intermittent numbness and pain in the right leg and
persistent foot drop on the right. It was also noted that
the veteran had been wearing a back brace for support and had
been taking analgesic medications for relief. On admission,
there was some mild tenderness in the low back with slight
restriction in back movement. There was evidence of an L5
radiculopathy with weakness in right ankle dorsiflexion,
eversion and extension of the great toe. There was impaired
sensory sensation in the L5 dermatome. Diagnostic studies
showed bulging discs at L3, L4 and L5. There was compression
of the left L4 root, which was asymptomatic, and compression
of the right L5 root, which was the symptomatic side. The
pain improved during hospitalization, and at discharge it was
noted that the veteran could resume pre-hospital employment
two weeks after discharge.
At a May 1983 VA orthopedic examination, the veteran
complained of back pain with radiation of pain to the right
leg; he also complained of numbness along the medial aspect
of the right leg. Additionally, he stated it was difficult
to walk more than one block and he said that sitting or
standing more than 10 to 15 minutes aggravated his back and
required change of position. On examination, there was
tenderness over the lumbosacral area by palpation. There was
forward flexion of the back to 60 degrees. Lateral flexion
and extension of the back were within normal limits. A
straight leg-raising test was positive on the right side at
30 degrees and was negative on the left. There was decreased
sensation to pinprick stimulation along the medial aspect of
the right thigh and right calf and along the dorsal aspect of
the right foot. Deep tendon reflexes and Achilles reflexes
were not elicited bilaterally. There was evidence of slight
weakness of the dorsiflexion of the right ankle, compared to
the left. There was one-inch atrophy of the right thigh and
right calf compared to the opposite side.
The veteran disagreed with the March 1983 effective date for
the 40 percent rating for his service-connected back
disability and appealed to the Board. In a December 1984
decision, the Board concluded that the schedular criteria for
a rating in excess of 20 percent for the veteran’s
intervertebral disc syndrome were not met prior to March 3,
1983, and denied entitlement to an earlier effective date for
an award of the 40 percent rating.
In a January 1990 rating decision, the RO granted an
increased rating, to 60 percent, for the veteran’s service-
connected back disability effective from November 1988, and
the RO noted that medical evidence showed that the veteran
complained of intermittent back pain with occasional
radiation up to the mid back and down the right hip to the
right leg and great toe. He reported numbness over the
entire right leg. The veteran had reported the pain was
increased by standing or bending and that he noticed
increased pain when sneezing or coughing. Examiners had
noted muscle atrophy in the right thigh and calf and
decreased sensation and weakness in the right leg. There was
some difficulty walking and evidence of a mild foot drop in
the right side. The RO continued the 60 percent rating for
the veteran’s back disability in a January 1991 rating
decision, and the veteran disagreed with that decision. The
RO issued a statement of the case, and the veteran perfected
his appeal. He thereafter testified at hearings before RO
hearing officers and before a Member of the Board. In May
1994, the Board remanded the case to the RO for additional
development, including a VA examination. Thereafter, the RO
considered the additional evidence and in its December 1994
rating decision continued the 60 percent rating for the
veteran’s service-connected intervertebral disc disease. In
December 1994, the RO issued a supplemental statement of the
case on the issue of entitlement to an increased rating for
intervertebral disc disease.
In January 1995, the RO received a VA Form 21-4138, signed by
the veteran, in which he stated that he did not wish to
continue with the appeal on the condition of his spine. In a
letter dated in late-January 1995, the RO notified the
veteran that it had received his statement that he did not
wish to continue his appeal concerning the rating for his
back disability. In the letter, the RO stated that it would
cancel the appeal, and the December 1994 rating decision
became final. See 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R.
§ 20.1103 (1997).
In a letter received at the RO in late February 1995, the
veteran stated that he wished to reopen his spinal claim and
requested consideration of additional evidence, arguing that
it was in direct contrast with the VA examination report of
July 1994. After consideration of the additional evidence,
the RO continued the 60 percent rating in a September 1995
rating decision and thereafter issued a supplemental
statement of the case in which it addressed the increased
rating claim. The veteran perfected an appeal, and the issue
is before the Board.
Disability ratings are determined by applying the criteria
set forth in the VA Schedule for Rating Disabilities (Rating
Schedule), found in 38 C.F.R. Part 4 (1997). The Board
attempts to determine the extent to which the veteran’s
service-connected disability adversely affects his ability to
function under the ordinary conditions of daily life, and the
assigned rating is based, as far as practicable upon the
average impairment of earning capacity in civil occupations.
38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10 (1997).
The veteran’s service-connected intervertebral disc disease
with sciatic neuropathy and diminished reflexes is currently
rated 60 percent disabling under 38 C.F.R. § 4.71a,
Diagnostic Code 5293, titled intervertebral disc syndrome.
The highest rating assignable under Diagnostic Code 5293 is a
60 percent rating, and that rating is warranted for
pronounced impairment with persistent symptoms compatible
with sciatic neuropathy with characteristic pain and
demonstrable muscle spasm, absent ankle jerk or other
neurological findings appropriate to the site of diseased
disc, with little intermittent relief. An 80 percent rating
could be assigned under 38 C.F.R. § 4.124a, Diagnostic Code
8520 if the evidence showed complete paralysis of the sciatic
nerve. With complete paralysis of the sciatic nerve, the
foot dangles and drops, no active movement of muscles below
the knee is possible and flexion of the knee is weakened or
lost. Under 38 C.F.R. § 4.71a, Diagnostic Code 5286, a 100
percent rating is warranted for complete bony fixation
(ankylosis) of the spine at an unfavorable angle with marked
deformity and with or without involvement of other joints.
At the July 1994 VA examination, upon which the RO based the
continuation of the 60 percent rating in its December 1994
rating decision, which became final, the veteran’s main
complaint was that he could not do any heavy lifting or pick
up objects if he had to stoop and pick them up. He mainly
complained of low back pain, and stated that the pain shot up
his back at times. He also complained of decreased sensation
of the heels and numbness of the right leg. On examination,
the physician noted that the veteran’s gait was unremarkable.
There was flexion of the back to approximately 50 degrees,
extension to 10 degrees, right side bending to approximately
30 degrees, left side bending to approximately 25 degrees and
rotation to approximately 40 to 45 degrees, bilaterally. The
veteran was able to squat and arise to the level of a chair
seat. He was able to stand on his heels and toes without
difficulty. Straight leg testing, while sitting, was
unremarkable; while recumbent, straight leg testing was
positive at approximately 85 to 90 degrees, bilaterally. The
veteran did complain of some low back pain shooting into his
legs. Reflexes were diminished, but the physician stated
that he felt that the veteran had approximately one-fourth
patellar reflexes, bilaterally. There appeared to be
definite sensory loss in the right leg. The veteran appeared
to have fairly good muscle tone, but his right thigh was
approximately 2 centimeters smaller than the left. The
impression was intervertebral disc syndrome with
radiculopathy with definite sensory loss. The physician
stated that although the right thigh was approximately 2
centimeters smaller than the left, there did not appear to be
any marked atrophic changes and the veteran appeared to have
pretty good muscle tone.
With his new increased rating claim filed subsequent to the
December 1994 rating decision, the veteran submitted a report
of a November 1994 MRI study of the lumbar spine from Tri-
State MRI. The study showed extensive degenerative changes
throughout the lumbosacral spine and bulging annuli at L1-L2,
L3-L4, L4-L5 and L5-S1 with apparent right lateral herniated
nucleus pulposus at L2-L3 and L3-L4. The physician stated
there was some increase in degenerative changes, with
narrowing and bulging annuli at all levels since the previous
study in October 1990. At a VA orthopedic consultation in
December 1994 or January 1995, the veteran complained of low
back pain with radiation into his right leg. The veteran
stated his right leg was numb and was increasing in severity.
The physician noted that the November 1994 MRI study had been
positive for herniated nucleus pulposus at L2-L3 and L3-L4.
The physician noted that he had discussed the pros and cons
of surgery with the veteran and that the veteran decided to
follow through and determine his progress with pain since he
was having minimal difficulty at the present time.
The veteran’s wife has indicated that the veteran’s back pain
increased in June 1995 and that he received continuing VA
treatment, medication and physical therapy including the use
of a transcutaneous electrical nerve stimulator (TENS) unit.
A VA hospital summary shows that the veteran was hospitalized
in February 1996 to rule out a cerebrovascular accident. It
was noted that the veteran’s past medical history included
back pain due to disc herniation from L1 to L4. The veteran
reported that he was able to walk more than a mile without
chest pain or dyspnea. On physical examination, deep tendon
reflexes were 1+ bilaterally in the upper and lower
extremities. Strength was 5/5 in the left upper and lower
extremities and 4/5 in the right upper and lower extremities.
Babinski was down-going, bilaterally. Sensation and
proprioception were intact in the lower extremities. The
veteran’s gait was occasionally unsteady. No definite
favoring of either side was noted. The final diagnoses were
left-sided cerebrovascular accident/basal ganglia infarct,
hypertension, gastroesophageal reflux disease and
osteoarthritis.
The evidence for consideration since the last final rating
decision in December 1994 shows that the veteran’s service-
connected intervertebral disc disease is manifested primarily
by low back pain with radiation into the right leg and
numbness, mainly in the right leg. The Board notes that
38 C.F.R. § 4.40, concerning functional loss due to pain, and
38 C.F.R. § 4.45, concerning weakness, fatigability and
incoordination, are applicable in determining the extent of a
veteran’s disability due to intervertebral disc syndrome.
VAOPGCPREC 36-97; see DeLuca v. Brown, 8 Vet. App. 202
(1995). Although the pain has at times required the use of a
TENS unit and the most recent available MRI study confirms
some increase in degenerative changes and bulging annuli, the
pain has not been shown to be constant, and there is no
indication of limitation of back motion, disturbance of
locomotion, weakened movement, instability, or level of
atrophy that would not be encompassed by the currently
assigned 60 percent rating. In this regard, the Board notes
that the most recent evidence shows that the veteran can walk
more than a mile and the strength in his affected right leg
has been measured at 4/5. Under the circumstances, the Board
finds no more than pronounced functional impairment and
concludes that the disability is appropriately rated at 60
percent under Diagnostic Code 5293. Other diagnostic codes
under which a higher rating could be assigned are not
applicable here as there is no indication of complete
paralysis of the sciatic nerve with attendant foot drop nor
is there any indication of complete ankylosis of the spine.
Finally, the Board notes that the veteran has not asserted
that the schedular criteria are inadequate to evaluate his
service-connected back disability, and the record does not
contain evidence of exceptional or unusual circumstances
indicating that the Rating Schedule may be inadequate to
compensate for the average impairment of earning capacity due
to the disability. This is not, therefore, a set of
circumstances requiring the Board to address the issue of
entitlement to an extra-schedular rating under 38 C.F.R.
§ 3.321(b) (1997), and the Board will not do so. See
VAOPGCPREC 6-96.
ORDER
A rating in excess of 60 percent for intervertebral disc
disease is denied.
SHANE A. DURKIN
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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